Both the Divorce Act and the Family Law Act use the Child Support Guidelines (CSG) in order to determine the amount of child support that is payable.
The guidelines are regulations to both Acts and as a result they are law and must be complied with when making an order. The guidelines under both Acts are essentially mirror-images of one another and so in the following paragraphs reference will only be made to the CSG and any section numbers or subsections referred to will be identical regardless of which Act you are claiming under.
Usually, any time you are required to go to court to determine an issue relating to child support the judge will consider and apply the table amounts found in the guidelines. If you make an application to have the initial order varied the judge will also refer to and apply the guidelines in accordance with the change in circumstances that has occurred. In so doing the judges are validating the objectives of the CSG, which are:
If instead you and your former spouse/partner opt to draft an agreement stating the amount of child support that will be paid then the CSG will still apply and so it is always a good idea to refer to the CSG and try to order an amount that reflects the table amount.
If you do not then you should include a provision in your agreement stating why you have chosen to deviate from the CSG and be aware that if the court is later asked to decide on an issue relating to child support that was arranged through an agreement the judge may be able to vary the initial amount and impose the table amount from the CSG.
There are only 2 instances during which the court will order support and not apply the CSG (which have been discussed in the previous paragraphs):
- special provisions
- consent orders/reasonable arrangements
S. 25.1 applies to domestic contracts and agreements and states that if the income or other financial information of the parents is used to determine the amount of child support payable then every person who is a party to the contract or agreement has an obligation to provide the following information no later than 30 days after the anniversary of the date on which the agreement or contract was entered into:
1. For the most recent taxation year, a copy of the person’s,
Unless, under subsection (5), the person who fails to provide the information is a child who is not a party to the agreement or contract.
How Child Support is Calculated
Child support amounts are usually calculated by taking the gross income of the paying parent and the number of children to which the support payment applies and then looking to the tables in Schedule I to determine the monthly amount payable. Gross income means the paying parent’s income before taxes or other deductions and is contemplated under s. 16 of the CSG.
Calculation of annual income
According to s. 15(2) spouses also have the option of agreeing in writing on an annual income that is to be used, however, the court does not have to accept the agreement if it thinks it is unreasonable.
Since income is such an incredibly important factor for determining child support there are numerous provisions in the CSG which make it mandatory that disclosure of all financial information be proper and complete:
Obligation of applicant
Obligation of respondent
Income over $150,000
Keep in mind that if you fail to comply with s. 21, then under s. 22 a judge may either have the application set down for a hearing or moved for judgment or he or she may make an order requiring that the information be provided to both the courts and the other party. You may also be forced to pay the costs associated with an order under s. 22(1)(a) or under s. 24 the court may do the following:
24. Where a parent or spouse fails to comply with an order issued on the basis of an application under clause 22 (1) (b), the court may,
S. 25 places an obligation on the paying parent to provide any and all relevant income information not more than once a year to the recipient parent, or courts, if requested. This also applies to situations where the court has found that due to the low income of the paying parent he or she does not have to pay support and where orders have been imposed that require the income information of the recipient parent in order to make a proper determination.
You should be aware of the fact that under s. 25(5) once a request has been made the party that receives the request has either 30 or 60 days to produce the necessary documents depending on whether or not they reside within or outside of Canada and the United States. Failure to comply with s. 25(1)-(6) will result in the following :
- consider the parent or spouse to be in contempt of court and award costs in favor of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings; or
- make an order requiring the parent or spouse to provide the required documents to the court, as well as to the spouse, order assignee or applicant under section 33 of the Act, as the case may be.
Varying from the Guidelines
There are also provisions that give judges the power to vary the income if they feel that the paying parent is withholding relevant information or if the amount calculated under s. 16 proves to not be the fairest determination of his or her income:
- s. 17(1)-(2) allows the court to consider the paying parent’s income for the 3 years prior to bringing the application as well as any business investment losses in order to determine an amount that is fair and reasonable based on the pattern of income, any fluctuations or any losses.
- S. 18(1)-(2) governs situations where the paying parent is the shareholder, director or officer of a corporation and the court believes that the income submitted for the purposes of child support does not actually reflect all the money available to the paying parent for the purpose of child support.
- S. 19(1)-(2) gives the court the power to impute income to the paying parent if it is shown, based on subsections (a)-(i), that the income submitted for the purpose of determining child support is less than what it should be. Subsection (2) allows the court to add deductions back in if they are considered to be “unreasonable”.
- S. 19(1)(a) deals with instances of intentional unemployment or underemployment and the 2002 Ontario Court of Appeal decision states that there is no need to find a specific intent to evade child support obligations in order to impute income to the paying parent. All that is required is a voluntary act where a parent chooses to earn less than he or she is capable of earning. Therefore, this subsection doesn’t apply in situations where, through no fault or act of the paying parent, he or she is laid off or given reduced hours.
- Also, a more recent Ontario decision affirms that “income” is restricted to income that is subject to taxation. Therefore, gifts cannot be included in a paying parent’s income unless the circumstances surrounding the making of the gift are unusual, i.e. they are received fairly regularly, they do more than provide a basic standard of living, etc.
- S. 20(1)-(2) deals with situations where the paying parent is a non-resident of Canada and the recipient parent ordinarily resides in Ontario or any province or territory to which the CSG applies.
Special and Extraordinary Expenses
The CSG also addresses instances where a parent may be required to pay the table amount as well as an additional amount to account for extra expenses or special circumstances:
- s. 7(1) allows the court to make an order requiring the paying parent to, in addition to the table amount, contribute to or pay for all of any “special” or “extraordinary expenses”. A determination will be made based on:
- the necessity of the expense in relation to the child’s best interests, and
- the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation
- if the expense passes “the necessary and reasonable test” then the parents will be required to share it in proportion to their gross incomes which is why this section requires that the recipient parent provide his or her income information as well.
- Also, any contribution made by the child will be deducted before the expense is divided between the parents.
- “special” or “extraordinary” expenses are listed in subsections (a)-(f) and subsection (1.1) defines the term “extraordinary”
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
- If the child towards whom support is to be paid is over the age of 18 then s. 3(2) gives the court the power to order either:
- the table amount, or
- another amount that appears to be more suitable based on the means, needs and circumstances of the child.
- the judge in a situation such as this will take the income of the recipient parent into consideration as well as any financial contribution that the child is able to make. Children over the age of majority are usually required to make contributions to their support unless there are health problems which prohibit it.
- It seems to be the case that support is awarded to children over the age of majority to pay for university or college tuition, and any other expenses related to the pursuit of a post-secondary degree such as living expenses, textbooks, etc.
- when paying parents are high-income earners, i.e. they have incomes of over $150,000, then s. 4 states that the courts may order the table amount or if the court considers that amount to be inappropriate:
(i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates,
- Recall that in the preceding paragraphs it was mentioned that step-parents who have stood in the place of a parent will be required to pay support to the child. S. 5 of the CSG gives the court the power to deviate from the table amount by having regard to the obligations of other (i.e. biological) parents.
- However, you should note that this discretion does not apply to biological parents. They may not get their support obligation reduced by the amount that another individual will have to pay.
- A 1999 decision from British Columbia Supreme Court articulated an approach to use when faced with such a situation:
“[…]when seeking to determine what is a fair contribution for
- s. 6 of the CSG allows the court to order that a parent who has medical or dental insurance available to him or her, purchase or continue coverage for his or her child in addition to the table amount.
- Ss. 8 and 9 contemplate split and shared custody arrangements. These sections require that both parents provide all relevant income information.
8. Where each parent or spouse has custody of one or more children, the amount of an order for the support of a child is the difference between the amount that each parent or spouse would otherwise pay if such an order were sought against each of the parents or spouses.
- You should be aware of the fact that “split” custody refers to situations where a father has greater then 60% of the time with one or more children and a mother has greater then 60% of the time with the remaining children.
9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
- S. 9 has been interpreted by the Supreme Court of Canada and it established a 2-step approach to determining child support in situations of shared custody. The first step is to determine whether the 40% threshold has been met, and if it has, then the amount of support is decided by considering subsections (a), (b) and (c):
- Subsection (a) states that the starting point in figuring out the appropriate amount is a simple “set-off” whereby the amount payable is the difference between the Table amounts for each parent (as though each was seeking child support from the other). This amount may be varied or added to based on the evidence presented under subsections (b) and (c).
- Subsection (b) refers to the increased costs that are associated with shared custody. These costs are determined by examining the budgets and actual expenditures of each parent.
- Subsection (c) gives the court the power to consider the condition, means, needs and other circumstances of each parent and child and vary the amount payable where necessary. It seems as though the courts are most concerned with the standard of living of the child involved and will probably try to award an amount that will allow the parents to maintain that standard of living.
- Establishing the 40% threshold requirement may be difficult as courts have been inconsistent with the factors used in order to make this determination. Some judges include weekends, holidays and overnight stays (i.e. the hours during which the child is sleeping) in the calculation of the 40% whereas others do not. So far, there is no bright-line rule dictating what is required in order to meet the threshold.
- Lastly, and in extremely rare circumstances, the courts will order an amount that is either higher or lower than the table amount to account for undue hardship towards either one of the parents or the child. Undue hardship is contemplated under s. 10 of the CSG. This section along with the test found in Schedule II provide a very high standard to meet and the table amount will only be deviated from when it would result in the household of the parent claiming hardship to have a lower standard of living than the other household.
10. (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
Standards of living test
For the purposes of the standards of living test the courts will take into consideration not only the incomes of both parents but also the incomes of any other people living within a household. As stated in subsection (4) the test may be found in Schedule II:
COMPARISON OF HOUSEHOLD STANDARDS OF LIVING TEST (SUBSECTION 10 (4))
in cases where the Divorce Act (Canada) applies, a child of the marriage or a child who,
is under the age of majority, or
in cases where the Act applies, a child who is a dependant under the Act; (“enfant”)
“household” means a parent or spouse and any of the following persons residing with him or her,
“taxable income” means the annual taxable income determined using the calculations required to determine “Taxable Income” in the T1 General form issued by the Canada Revenue Agency. (“revenu imposable”)
Where the information on which to base the income determination is not provided, the court may impute income in the amount it considers appropriate.
Low-income Measures Amount